Operation Pretense: We Become “Mississippi’s Untouchables”
In 1985, a new FBI agent-in-charge arrived in Jackson. Weldon Kennedy, a Texan and veteran pilot, immediately energized law enforcement statewide. Personally flying the three-seater FBI plane, he visited every sheriff and chief of police from Memphis to the Gulf Coast. He had one question for everyone: What is your biggest crime problem, and how can the FBI help solve it? Everyone’s biggest problem turned out to be corruption, mostly by county supervisors, who were poorly paid and supplementing their income by demanding kickbacks on everything purchased by their counties, especially road-building supplies like expensive culverts, parts for bulldozers like grader blades, and the tar, gravel, and earth moving equipment used to build roads. Kennedy met with both U.S. Attorney’s Offices, in Jackson and Oxford, and asked for our support. He proposed a statewide undercover sting operation.
Jackson U.S. Attorney George Phillips had just the idea for Kennedy. An equipment supplier named John Burgess had recently complained of being shaken down by supervisors for 10 percent on every sale he made to a county. Burgess, an ordained minister and devout fundamentalist, was fed up with the system and wanted action. After meeting with Phillips and Kennedy, he agreed to allow his business near Jackson to be used as a front by the FBI to run the sting. Two tobacco-chewing, down-home FBI agents were assigned to act as his salesmen, and his business was outfitted with video cameras and audio recorders, hidden in a back room where elaborate records of the kickbacks were also kept by an FBI agent-accountant. Crooked supervisors flocked to the business, renamed Mid-State Pipe and Supply, placing orders and demanding kickbacks. The agents obliged. Based on the percentage of the kickbacks and Brother Burgess’s role, the sting was code-named Operation “Pretense,” short for “The Preacher’s 10 Percent.” Under FBI and U.S. Attorney guidelines, we could not target public officials unless there was “predication”—some basis beyond mere suspicion that an official is corrupt. We had some predication for some supervisors but needed more.
After catching one statewide salesman on tape, agents hotboxed him. He “rolled over” and in return for a lighter sentence agreed to not only wear a wire and work with us, but to give us predication on dozens of supervisors statewide to whom he’d already paid bribes. The whole story is way too long to recount here but there is an excellent full-length book about it by Dr. James Crockett, retired Director of Accountancy at the University of Southern Mississippi entitled, appropriately, Operation Pretense: The FBI’s Sting on County Corruption in Mississippi.
The first problem we faced in the case was an embarrassment of riches. We had so many targets that the FBI budget didn’t include enough money to make all the payoffs the supervisors wanted. On the other hand, if we kept the payoffs too small, jurors might agree with defense attorneys who would argue we should spend our time chasing bank robbers and drug dealers rather than little $50 kickbacks. In the end, we compromised, taking only cases where the targets wanted at least several hundred dollars. We would not prosecute a supervisor until he had taken at least three payoffs to rebut the defense that these were just isolated one-time incidents, perhaps under pressure by the undercover agents.
The state auditor at the time was Ray Mabus, a Harvard Law graduate and later Mississippi governor, ambassador to Saudi Arabia, and Secretary of the Navy. Mabus gave us the full support of his agents, who knew the system intimately and were a huge help getting needed documents that might otherwise have disappeared from local courthouses. Within a few months we had enough evidence to indict at least fifty supervisors in the two districts, but decided to indict first just ten or so in each district to keep the cases manageable. In our district, we got indictments of all five members of the Pontotoc County board. Teams of FBI agents and auditors arrested them just before sunrise, when a defendant is most vulnerable. Within weeks they were all ready to plead guilty. To our pleasure and relief, the press supported us heavily, making the cases front-page news across the state for months. Every stage of every case led the evening news around the state.
One day while Bob Whitwell and I were visiting our prosecutor partners in Jackson, Jerry Mitchell of the Clarion-Ledger, who had strongly supported our sting, asked us to pose for a picture together. We usually never agreed to such apparent headline-grabbing and looked at each other to see who would say “No” first. No one did. Jerry asked us to stand in front of the judicial seal at the U.S. courthouse in Jackson, where we were meeting, and reached into a big plastic garbage bag and pulled out four 1930s fedora hats. To our further surprise, we agreed to put them on and pose together. To me we all looked either like gangsters (me) or bootleggers (James Tucker), but they snapped our picture anyway and the next weekend we were on the front page. Senator Trent Lott called Bob Whitwell the next day to chew him out for “showboating.” The story began with a big, bold headline: “The FEDS: Their Jobs Tell the Story.”18
Mississippi 1985.
A string of counties is ruled by powerful public officials who turn their heads at corruption and hold out their hands for payoffs—a jungle of deceit, bribery, and fraud.
This is the story of four men—Mississippi’s “Untouchables.” Federal prosecutors waging war on a half-century of public corruption where “kickback” had become synonymous with “county supervisor.” It is the story of U.S. Attorneys George Phillips and Robert Whitwell and Assistant U.S. Attorneys John Hailman and James Tucker, four men who have used the courts to smash lawless elements from the coast to Corinth, from crooked office-holders to drug dealers to professional gamblers.
Combined, they have more than four decades with the U.S. Department of Justice. Their offices have prosecuted 57 supervisors and 14 equipment suppliers in 25 counties stemming from an FBI undercover probe called Operation Pretense.
That’s just part of their job.
This is their story.
By Michael Rejebian and Jerry Mitchell
My only regret about Operation Pretense was that it ended before we got to follow up on Weldon Kennedy’s idea to set up a second sting with a lobbying firm as its front to accept requests for bribes from members of the Mississippi legislature. We had predication on several, and it looked like a target-rich environment, but we could never get Washington to approve it. If they had, Mississippi would have had its own equivalent of the sting called ABSCAM successfully worked against members of the U.S. Congress. But you can’t have everything. And when Weldon Kennedy was transferred back to Washington, he soon became deputy director, number two man in the whole FBI, where he was invaluable to the whole country, not just our little district.
Courtroom Observers Attend the Trial of a Black Supervisor19
The first defendant in Operation Pretense in our district to go to trial was county supervisor Larry Miller of Winston County. Miller was hardly our choice for the first Pretense trial. He was the first black supervisor ever in Winston County and the only black supervisor indicted in our district. As the potential jurors were filing into the courtroom, two busloads of NAACP members from Winston County also walked in en masse, led by a 6’, 8” preacher. There were also numerous black persons among the jurors. Race would clearly be a factor in the trial.
I decided to take the bull by the horns and walked straight up to the lead preacher and introduced myself and told him we were glad he was there. He seemed wary and more than a little surprised and replied bluntly but honestly, “We’re here to see Larry gets a fair trial.” I told him we were glad of it, thinking to myself that his group looked middle-aged and serious and that when they heard the powerful audio tapes we had of their fellow church member Miller asking for bribes, they would go home and dispel the rumors that there was some racial motive behind it. It was one of our stronger cases and would have an extra moral appeal to this religious group of jurors because of the way Miller had handled his corruption. The only thing that bothered me was that Miller’s wife, the mother of his children, was in the audience and would hear the dirt that was a
t the heart of his case. Our evidence would reveal that the county purchasing clerk, a pretty young black woman, was also Miller’s mistress and had been helping him rip off the county.
In picking the jury Al Moreton and I followed our experience with newly enfranchised black jurors. Leaving only one black person on a jury tended to leave them feeling isolated. We had even experienced eleven-to-one hung juries, so we accepted five black jurors, mostly male and mostly young. They all had good records, good jobs, and good reputations based on our background checks. It did worry us a little that two were from Marshall County, for many years a center of militancy and boycotts. As far back as Reconstruction, when the federal court had to leave Oxford temporarily because the Ku Klux Klan was so strong there, it was moved to Holly Springs in Marshall County, which was heavily black. A certain racial tension had long existed there. Nevertheless, we went for it.
After two days of hearing their trusted supervisor and his girlfriend discuss on tape ripping off their county, the NAACP members walked out of the courtroom at the end of the day. Their leader, who towered over me, walked up and said to me very simply, “Larry has lied to us all along. We hope you convict him.” I had checked out Winston County and knew Miller represented a predominantly black district, so I replied, “And we hope you elect a straight supervisor you can be proud of.” We shook hands and they left.
Later that week, when the jury came back with a verdict, we saw that one of the young black men, a factory worker from Holly Springs in his twenties, was carrying the verdict forms, a sign he was the foreman. He and other jurors looked at us positively and avoided looking at Miller and the defense table, always a good sign for us. The verdict was guilty on all counts. The lead defense attorney, Johnnie Walls of Greenville, with whom I’d once worked at Legal Services in Oxford, shook hands as always, but said something unusual this time. “John, I’m not wasting my time or your time or Larry’s money filing an appeal. You’ve got him cold, and there’s no point.”
I felt good about what Johnnie said except for one thing: When there’s no appeal, no briefs are written, no opinion is published by the Court of Appeals, and in most cases not even a transcript of the trial testimony is typed up. Therefore, discussion of this case rests entirely on what I kept from our own files, including the indictment, witness interviews, a copy of the verdict, and my own personal notes of the trial. But one thing is certain: it was a meaningful trial for all of us, black and white, and I will never forget it. And the voters of Winston County did elect another black supervisor to replace Miller and we’ve never had another corruption complaint against a supervisor from Winston County.
Opposing Former Chief Judge J. P. Coleman before His Own Court20
After the last supervisor pled guilty, we began using convicted supervisors as cooperating witnesses against crooked providers of goods and services to counties, commonly known as “vendors.” One tricky decision in each case was to decide whether the money a supervisor got was the result of extortion by the supervisor or bribery by the vendor. It was often difficult to tell. Sometimes the parties themselves hardly knew. When a vendor did not want to pay but the supervisor threatened to cancel all his county business unless he was paid off, that was clearly extortion by the supervisor and the vendor was a victim. If, however, the supervisor did not ask for money, but the vendor insisted, then that was bribery. We found cases of both.
When Operation Pretense began to make national news, I was asked to teach how to prosecute corruption cases at DOJ and at private seminars nationwide. In 1987 assistant attorney general William Weld, later governor of Massachusetts, asked me along with several AUSAs, including Rudi Giuliani and Eric Holder, to write a chapter for the DOJ Manual for Prosecution of Public Corruption (1988). It was in 487 large-format pages. I later taught the same subject in over a dozen countries, from Morocco to Indonesia, most of which had much worse corruption problems than we did. In writing my monograph, I sought an analogy for the bribery/extortion issue that would catch the attention of case-hardened prosecutors. Finally I settled on humanity’s favorite subject, sex. If, for example, a supervisor forced a vendor to give up a thing of value such as cash, that was extortion, which is like rape. It has a clear perpetrator and a clear victim. Bribery, on the other hand, is more like illicit but consensual sex: either party can initiate it, both parties can enjoy it, and neither party is likely to report it since both are involved regardless of who initiated the idea.
Before I wrote that chapter Judge Biggers once told his secretary, before taking a guilty plea from a chief of police for accepting sex as a bribe from a female CI, “Watch this. I’m going to get Hailman good.” In federal court, after a defendant has admitted his guilt, the judge always turns to the prosecutor and asks for a summary of our evidence to show we really have a case and are not bluffing. In this case I stated that the defendant received as his bribe “sexual relations with an attractive young female.” The Judge then asked me with a straight face if I was saying that sex was a thing of value. My equally straight-faced reply surprised him. “Absolutely, Your Honor. Sex is, without a doubt, a thing of value.”
Of all the vendors we looked at, the company most clearly guilty of bribery was an Alcorn County company called North Mississippi Supply. It was run by Bobby Little, brother of Thurston, whom I’d already convicted twice of defrauding the United States. In the North Mississippi Supply case, however, the only brother involved was apparently brother Bobby. All five supervisors from Pontotoc County testified that Bobby Little paid them kickbacks on every county purchase. Two supervisors from Monroe County, Bud Faulkner and John Alan Cockerham, said the same.
Our only dilemma was when to seek an indictment. Travis Little was running for the state senate during the month after we completed our investigation, when we would normally have sought an indictment. Travis Little was a Democrat, and with Republican Bob Whitwell being U.S. Attorney, we finally decided that indicting another of Travis’s brothers just before the election would look political, even though it wasn’t, so we held off for a month. In hindsight, it was definitely the right thing to do. Several defendants had already spoken loud and long on TV about Pretense being political. In the end, Travis Little was not only elected but served several successful terms in the state senate, finishing his career as president pro tem without a hint of scandal, so we felt vindicated in holding off on indicting his brother to avoid politics.
When Bobby was indicted, we had a different dilemma. Our witnesses had identified hundreds of documents reflecting hundreds of bribes paid to them by Bobby Little and his company. President Jimmy Carter, during his final year in office, had instituted a rule in the U.S. Attorney’s Manual arbitrarily limiting all indictments to just fifteen counts, thinking as a non-lawyer that was plenty, and apparently fearing we might abuse some poor, helpless defendant. Since most of Bobby Little’s deals involved small amounts, often under $100, we were concerned that if our charges were limited to just fifteen deals the case would seem too trivial to jurors. Worse, our own Judge Keady had recently ruled that we could not offer proof of any transactions that were not alleged in the indictment, thus cutting out about 99 percent of our proof in the Little case.
In the end, we asked ourselves, what is more important, Washington or local justice? Should we consider Jimmy Carter or justice for our citizens in our own local corruption cases? We decided to go for broke, charging Little with every last bribe we could prove, figuring, as the old saying goes, it would be easier to seek forgiveness than permission. We figured DOJ might yell at us but would not likely throw out important local corruption convictions for which we’d already won national recognition.
Our next dilemma was how to charge a conspiracy in the case, since only such a charge would allow us to put in all the otherwise hearsay statements of Little and others. We finally decided to indict the company itself as a defendant. Indicting a company can be useful. Even though you cannot dig up a corporation’s buildings and equipment and put them in jai
l, you can ask the judge to put such heavy fines on them that it will put them out of business, not to mention making them pay back their profits to the victim counties on all their crooked deals.
When you indict a company, it actually appears in court through one of its chief officers, usually its president or CEO. Since North Mississippi Supply was mostly a one-man show, we were basically charging Bobby Little with conspiring with himself. What would President Carter say about that?
My indictment ran to 310 counts and 327 pages, alleging patterns of violations of four different federal laws. I decided the jury would need some sort of index, I but didn’t want to call it that. The thing was so flamboyant that Al Moreton refused to have anything to do with it, so I went over the top again and entitled the outline a “Concordance,” telling the boys Jimmy Carter might even appreciate the biblical tone I claimed it would give the document. It was so thick we had to have it bound by an outside printing company, it being too big for our office’s machines.
Bobby Little surprised us with his choice of defense counsel. Apparently he still thought there was something political about Pretense. My opponent at trial was to be none other than the renowned J. P. Coleman, who was not only a noted legal scholar, but had previously been elected district attorney, state attorney general, and governor of Mississippi. He had also been a judge on the Fifth Circuit Court of Appeals in New Orleans, where he retired as its highly respected chief judge. I had argued many cases before Judge Coleman and had always won. Seeing him down in the pit with me at opposing counsel table was quite a shock. I knew he was not only a fine legal scholar and writer but a real fighter who enjoyed trying jury cases. This case would be no exception. Throughout the case we exchanged some pretty hot written motions and responses, always writing each other heartfelt private letters of apology and mutual praise thereafter.
From Midnight to Guntown Page 17